https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9809

Hiuhu v Gatheru (Civil Appeal E250 of 2023) [2026] KEHC 9809 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9809 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E250 of 2023 KL Kandet, J July 3, 2026 Between Michael Gicheru Hiuhu Appellant and George Kamau Gatheru Respondent (Being an Appeal against the judgment of Hon. L.K Nyabando Senior Principal Magistrate delivered on 30.06.2023 in Kikuyu SPMCC No. 77 of 2020) Judgment Background 1.This appeal arises from the judgment delivered on 30th June 2023 in Kikuyu SPMCC No. 77 of 2020. The suit was commenced by a plaint dated 7th May 2020 filed by George Kamau Gatheru, the plaintiff in the lower court (hereinafter the Respondent), against Michael Gicheru Hiuhu, the 1st Defendant (hereinafter the Appellant), and Family Bank Limited, the 2nd Defendant (not a party to this appeal). The Respondent sought special damages in the sum of Kshs. 991,546/-, arising from a road traffic accident that occurred on or about 24th June 2017 along the Naivasha–Nairobi Road at Muthiga, involving motor vehicle registration number KCE 978Z, owned and driven by the Appellant (hereinafter the Appellant's motor vehicle), and motor vehicle registration number KCA 546T, owned by the Respondent (hereinafter the Respondent's motor vehicle). 2.It was alleged that on the material date, the Respondent was lawfully driving motor vehicle registration number KCA 546T along the abovementioned road when the Appellant so negligently and/or carelessly drove, controlled and/or managed the subject motor vehicle registration no. KCE 978Z that it lost control and hit motor vehicle registration number KCA 546T from the front thereby extensively damaging it.The particulars of negligence were equally set out under paragraph 6 of the plaint. 3.The Appellant filed the 1st Defendants’ statement of Defence dated 8th April 2022 denying the allegations of negligence. 4.Having settled the issue of liability in favour of the Respondent against the Appellants at 100%, the Court proceeded to asses and awarded the Respondent Kshs.964,538/-as special damages. 5.The Appellants being dissatisfied with the trial court’s judgement, filed a Memorandum of Appeal dated 20th July 2023 on the following grounds:i.The Learned Magistrate erred on fact and in law in finding the Appellant’s driver wholly to blame for the accident devoid of any credible evidence in that regard and despite overwhelming weight of evidence to the effect that the Appellant’s vehicle was hit from the rear by the Respondent’s vehicle.ii.The Learned Magistrate erred on fact and in law in placing reliance on a purported sketch map allegedly drawn by PW1 which sketch map was not produced in evidence and which, in any event, had no evidential value since PW1 was neither the investigating officer nor was he at the scene of the accident at the material time.iii.The Learned Magistrate erred in fact and law in disregarding the evidence tendered by the Appellant’s driver to the effect that the Appellant’s vehicle was hit from the rear by the Respondent’s vehicle and that the Appellant’s driver never changed lanes as alleged.iv.The Learned Magistrate erred in fact and law in failing to find that there were patent contradictions in the evidence adduced on behalf of the Respondent on how the accident occurred.v.The Learned Magistrate erred in law and fact in finding that Madison Insurance Co. Ltd was entitled to recover costs from the Appellant in the name of the Respondent under the doctrine of subrogation.vi.The Learned Magistrate erred in law by failing to give appropriate weight and consideration to submissions filed by the Appellant’s advocates and authorities cited therein.vii.The Learned Magistrate erred in Law in failing to dismiss the Respondent’s caseviii.The Learned Magistrates Judgement was rendered/delivered per incuriamThe Appellant therefore prayed that the judgment delivered on 30th June 2023 in Kikuyu Senior Principal Magistrate's Court Civil Case No. 77 of 2020 be set aside, reversed and or varied, and that the Respondent's suit be dismissed with costs. - Submissions on the Appeal 6.The appeal was canvassed by way of written submissions. Both Parties filed submissions. The Appellants submissions are dated 17th April 2025 and the Respondent’s submissions are dated 12th June 2025. 7.The Appellant submitted that the learned trial magistrate erred in finding him 100% liable for the accident. He argued that the finding on liability was unsupported by the evidence on record and was based on a misapprehension of the facts. It was further submitted that, as a first appellate court, this Court is under a duty to re-evaluate the evidence and arrive at its own independent conclusions. Reliance was placed on CM (a Minor suing through Mother and Next Friend MN) v Joseph Mwangangi Maina [2018] eKLR. 8.On liability, the Appellant contended that none of the Respondent's witnesses witnessed the accident and that the investigating officer, who allegedly visited the scene, was not called to testify. It was submitted that PW1, who testified on behalf of the police, had no personal knowledge of how the accident occurred, while the learned magistrate improperly relied on an alleged sketch map that was neither produced in evidence nor prepared by the investigating officer. Counsel further argued that the only eyewitness who testified was DW1, whose evidence that the Appellant's vehicle had stopped to allow pedestrians to cross before it was struck from behind by the Respondent's vehicle remained uncontroverted and ought to have been preferred. 9.The Appellant further submitted that the Respondent's evidence was riddled with material inconsistencies. In particular, He argued that the version contained in the Respondent's insurance claim form regarding the direction in which the Appellant's vehicle allegedly changed lanes was inconsistent with the testimony of PW1. It was also submitted that the photographs in the assessment report demonstrated that the Respondent's vehicle sustained frontal damage while the Appellant's vehicle was damaged at the rear, thereby corroborating DW1's testimony that the Respondent's vehicle struck the Appellant's vehicle from behind. According to the Appellant, the Respondent's driver failed to keep a proper lookout, maintain a safe distance, or take evasive action to avoid the collision. 10.Counsel further submitted that the police abstract and the evidence of PW1 were insufficient to establish negligence. He argued that no sketch map, Occurrence Book extract, police file, scene measurements or other documentary evidence from the investigations was produced before the trial court. The Appellant maintained that the police officer's opinion could not, by itself, establish liability and that negligence had to be determined from the totality of the evidence. Reliance was placed on Benter Atieno Obonyo v Anne Nganga & Another [2021] eKLR, Rose Wanjiru Wachira (suing as the Administrator Ad Litem of the Estate of James Kariuki Karogo (Deceased)) v Joseph Ngige Miringu & Another [2022] eKLR, Mukwana v Mulilu & Another (Civil Appeal No. 337 of 2018) [2022] KEHC 15497 (KLR), David Kajogi M'Mugaa v Francis Muthomi [2012] eKLR, Catherine Mbithe Ngina v Silker Agencies Ltd [2021] eKLR, Harrison Baya Yaa v Mash East Africa Ltd [2020] eKLR, Lawrence Chinditi v Ainu Shamsi Ltd [2014] eKLR, and Jacob Momanyi Orioki v Kevian Kenya Ltd [2018] eKLR. 11.On the doctrine of subrogation, the Appellant submitted that the Respondent failed to establish the existence of a valid contract of insurance between himself and Madison General Insurance Company. Counsel argued that the production of internal claim documents, payment vouchers and a police abstract was insufficient to prove the existence of an insurance policy or indemnity, both of which are prerequisites for the application of the doctrine of subrogation. The Appellant relied on Speedag Interfreight (K) Ltd v Lacheka Lubricants Ltd & Another [2021] eKLR, Egypt Air Corporation v Suffish International Food Processors (U) Ltd & Another [1999] 1 EA 69, and Opiss v Lion of Kenya Insurance Co. Ltd, Civil Appeal No. 185 of 1991, to submit that, in the absence of proof of a valid insurance contract, the Respondent could not invoke the doctrine of subrogation. 12.Lastly, the Appellant submitted that the learned magistrate failed to adequately consider the Appellant's submissions and the authorities cited before the trial court, leading to a judgment rendered per incuriam. It was therefore urged that this Court set aside the judgment of the lower court, dismiss the Respondent's suit, and allow the appeal with costs. 13.The Respondent on the other side opposed the appeal and submitted that the learned trial magistrate properly evaluated the evidence and correctly found the Appellant wholly liable for the accident. He submitted that an appellate court should not interfere with findings of fact unless they are based on no evidence, are founded on a misapprehension of the evidence, or the trial court is shown to have acted on wrong principles of law. In support of this proposition, reliance was placed on Mburu & 6 Others v Kirubi (Civil Appeal E246 of 2021) [2023] KEHC 3599 (KLR). 14.On the issue of subrogation, the Respondent submitted that there existed a valid contract of insurance between the Respondent and Madison General Insurance Limited. Although the insurance policy itself was not produced, Counsel argued that its existence was sufficiently proved through the testimony of PW3, the insurance claim forms, payment vouchers bearing the policy number, and evidence that the insurer indemnified the Respondent. It was further submitted that the insurer was therefore entitled to pursue recovery in the name of the insured under the doctrine of subrogation. In support of these submissions, the Respondent relied on Africa Merchant Assurance Co. Ltd v Kenya Power & Lighting Co. Ltd [2018] eKLR, Egypt Air Corporation v Suffish International Food Processors (U) Ltd & Another (1999) 1 EA 69, AIG Insurance Co. Ltd v Bernard Kiprotich Kirui [2022] eKLR, Richard v Njeru (Civil Appeal No. 181 of 2021) [2022] KEHC 17083 (KLR), and Gahir Engineering Works Ltd v Rapid Kate Services Ltd & Another [2018] eKLR. 15.Regarding liability, the Respondent submitted that the police abstract produced at the trial expressly attributed blame for the accident to the driver of the Appellant's motor vehicle and reflected the outcome of the police investigations. It was contended that the findings contained in the police abstract were corroborated by the testimony of PW1, a police officer, who confirmed that investigations had been concluded and that the Appellant's driver had been found to blame. The Respondent distinguished the authorities relied upon by the Appellant, arguing that unlike those cases where investigations were still pending, the present case involved a police abstract containing the final outcome of investigations. Reliance was placed on Florence Mutheu Musembi & Geoffrey Mutunga Kimiti v Francis Karenge [2021] KEHC 8336 (KLR), Z O S & C A O (Suing as the Legal Representatives of the Estate of S A O (Deceased)) v Amollo Stephen [2019] eKLR, Benter Atieno Obonyo v Anne Nganga & Another [2021] eKLR, and Mukwana v Mulilu & Another (Civil Appeal No. 337 of 2018) [2022] KEHC 15497 (KLR). 16.In summation, the Respondent urged the Court to uphold the findings of the trial court, contending that the Appellant had failed to demonstrate any misdirection in law or fact that would warrant interference by this Court. The Respondent prayed that the appeal be dismissed with costs Analysis and Determination 17.The court has considered the original record, the record of appeal and the submissions on record plus the authorities cited in support thereof. As a first appellate court, the duty of this court is to re-evaluate the evidence and draw its own conclusions, but always bearing in mind that it did not have the opportunity to see or hear the witnesses testify. See Peters v Sunday Post Limited (1958) EA 424; Selle and Another v Associated Motor Boat Co. Limited and Others (1968) EA 123 and Williams Diamonds Limited v Brown (1970) EA 1. The Court of Appeal in Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982) – 88) 1 KAR 278 stated that:“A court of appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.” 18.Having considered the Memorandum of Appeal, the rival submissions and the record of the trial court, two issues arise for determination:i.Whether the learned trial magistrate erred in finding the Appellant wholly liable for the accident; andii.Whether the Respondent proved its entitlement to recover under the doctrine of subrogation. Issue I: Whether the learned trial magistrate erred in finding the Appellant wholly liable for the accident 19.The burden of proving negligence lay with the Respondent. Sections 107 and 109 of the Evidence Act place the burden upon the party who asserts the existence of a fact. In Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, the Court of Appeal held that there is no liability without fault and that negligence must be proved. Similarly, in Statpack Industries v James Mbithi Munyao, Civil Appeal No. 152 of 2003, the Court emphasized that a plaintiff must establish a causal connection between the alleged negligence and the damage suffered. 20.The Appellant's principal complaint is that the learned trial magistrate based the finding of liability on the testimony of PW1, who was neither the investigating officer nor an eyewitness to the accident. Upon re-evaluating the record, it is not disputed that none of the Respondent's witnesses witnessed the accident. PW1 merely testified from police records and admitted that he was not the investigating officer. Although he stated that investigations had blamed the Appellant's driver, the investigating officer was not called to testify, nor were the police file, Occurrence Book extract, sketch map or investigation report produced before the trial court. 21.It is settled that a police abstract is not conclusive proof of negligence. In Catherine Mbithe Ngina v Silker Agencies Ltd [2021] eKLR, the Court held that a police abstract merely proves that an accident was reported and cannot, by itself, establish liability. Likewise, in David Kajogi M'Mugaa v Francis Muthomi [2012] eKLR, the Court observed that where negligence is contested, liability must be determined from the totality of the evidence and not merely from the contents of a police abstract. 22.I am, however, equally alive to the principle that the failure to call the investigating officer is not, in itself, fatal to a party's case. The absence of such evidence does not automatically defeat a claim founded on negligence. Rather, the court must evaluate the entirety of the evidence on record to determine whether negligence has been established on a balance of probabilities. While the investigating officer's testimony may be of considerable assistance, liability in a civil claim is ultimately determined from the totality of the evidence adduced. 23.In the present case, the only witness who gave a direct account of the accident was DW1. He testified that he had slowed down to allow pedestrians to cross the road when the Respondent's vehicle rammed into the rear of his motor vehicle. He denied changing lanes as alleged by the Respondent. The Appellant also relied on photographs showing rear damage to his vehicle and frontal damage to the Respondent's vehicle, contending that they corroborated his account of a rear-end collision. 24.The Respondent, on the other hand, did not call the driver of motor vehicle registration number KCA 546T to testify on how the accident occurred. Consequently, the allegation that the Appellant negligently changed lanes was not supported by direct evidence. Further, the Appellant highlighted inconsistencies between the Respondent's insurance claim documents and the testimony of PW1 regarding the manner in which the accident occurred. The learned trial magistrate did not sufficiently address those inconsistencies before arriving at the finding of 100% liability. 25.That said, the Court is not persuaded that the Appellant bears no responsibility for the accident. The evidence establishes that the collision occurred when the Respondent's vehicle struck the rear of the Appellant's vehicle. While rear-end collisions often point to negligence on the part of the following driver, they do not automatically exonerate the leading driver. Whether the leading driver contributed to the accident depends on the circumstances of each case. 26.In Lakhamshi v Attorney General [1971] EA 118, the Court of Appeal held that where the evidence does not conclusively establish sole negligence and both drivers may have contributed to the occurrence of the accident, the court ought to apportion liability according to the degree of blameworthiness attributable to each. Similarly, in Farah v Lento Agencies [2006] eKLR, the Court of Appeal held that where the evidence leaves doubt as to which driver was solely responsible, apportionment of liability is the appropriate course. 27.In the present case, the Respondent failed to adduce direct evidence demonstrating that the Appellant negligently changed lanes or otherwise caused the collision. Conversely, the Appellant's evidence did not entirely absolve him of blame. As the driver of the leading vehicle, he equally owed other road users a duty of care. The precise manner in which the collision occurred was therefore not established with sufficient certainty to justify attributing the entire blame to either party. 28.The Respondent, as the driver of the following vehicle, equally owed a duty to maintain a safe distance, keep a proper lookout and drive at a speed that would enable him to stop safely should the circumstances require. In Masembe v Sugar Corporation & Another [2002] 2 EA 434, it was held that a following driver is expected to maintain sufficient distance from the vehicle ahead so as to avoid a collision unless exceptional circumstances are shown. 29.Upon evaluation of the entire evidence, this Court finds that the learned trial magistrate erred in holding the Appellant wholly liable for the accident. The evidence on record points to contributory negligence on the part of both drivers. In the circumstances, the interests of justice would be best served by apportioning liability at 50% against the Appellant and 50% against the Respondent. Issue II: Whether the Respondent proved its entitlement to recover under the doctrine of subrogation 30.The Appellant also challenged the Respondent's right to recover under the doctrine of subrogation, contending that no insurance policy was produced to establish the existence of a valid contract of insurance. 31.The doctrine of subrogation is well established in insurance law. In Egypt Air Corporation v Suffish International Food Processors (U) Ltd & Another [1999] 1 EA 69, the Court held that once an insurer indemnifies an insured against a loss, it is entitled to pursue recovery from the wrongdoer in the name of the insured. Likewise, Speedag Interfreight (K) Ltd v Lacheka Lubricants Ltd & Another [2021] eKLR reaffirmed that the insurer's right of recovery arises upon indemnification of the insured. 32.Although the insurance policy was not produced, PW3 produced the insurance claim documents, payment vouchers and evidence demonstrating that Madison General Insurance Company Limited had indemnified the Respondent. As held in Gahir Engineering Works Limited v Rapid Kate Services Limited & another [2018] eKLR, the failure to produce the insurance policy is not, of itself, fatal to a subrogation claim where the existence of the insurance relationship and the fact of indemnification are otherwise proved on a balance of probabilities. I am therefore satisfied that the Respondent established the insurer's right of subrogation and that the suit was properly instituted in the Respondent's name 33.Consequently, the appeal partially succeeds and the judgment of the trial court is varied to the effect that the finding, holding the Appellant 100% liable for the accident is hereby set aside and substituted with a finding apportioning liability at the ratio 50% against the Appellant and 50% against the Respondent. Final Disposition 34.Considering the above finding on liability, judgement is hereby entered for the Respondent against the Appellant as hereundera.Liability 50% : 50%b.Special Damages ksh.964,538/-c.Less contribution ksh.482,269/-d.Net Balance ksh482,269/-e.Interest on (d) above from the date of the lower court judgement until payment in fullf.The finding of the trial court on the doctrine of subrogation is hereby upheld.g.Parties shall bear own costs of the appeal. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026 VIRTUALLY THROUGH THE MICROSFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn The Presence Of:Kamau For The AppellantKinywa For The RespondentCourt Assistant: Aggrey Ochieng